1849.

BRETTEL and Others v. WILLIAMS, AYKROYD, & PRICE.

a

ASSUMPSIT on a guarantie for the payment to the plaintiffs of the price of coals to be supplied by them to firm named Unit & Roberts.-There was also a count for money due on an account stated.

Dec. 4.

The defendants,

who were in

partnership as railway con

tractors, under the name of W., A., & Co.,

a Railway Company to do cer

The defendant Aykroyd suffered judgment by default. contracted with The defendants Williams and Price, except as to a small sum which they paid into court on the last count, pleaded tain works. that they did not promise, and other pleas not material. At the trial, before Platt, B., at the Worcester Spring fendants to do Assizes, 1849, the following facts appeared:

The defendants, who were in partnership as railway contractors, under the name of Williams, Aykroyd, & Co., had contracted with a Railway Company to do certain works. Unit & Roberts had made a sub-contract with them to do part of the works, and required coals to make bricks for that purpose. As they were not able to procure coals from the plaintiffs on their own credit, Aykroyd signed the following guarantie in the name of the firm:

Campden, August 16, 1847.

Gentlemen,―The bearers, Messrs. Unit & Roberts, have a large contract from us for brickmaking, and will require a large quantity of coals. We have no doubt of their stability, and will consider ourselves bound to see their coal bills paid. We are, gentlemen, yours respectfully, WILLIAMS, AYKROYD, & Co."

U. & R. made a sub-contract with the de

part of the work; and for that purpose requiring coals to make bricks, knowledge or assent of his copartners, signed,

A., without the

in the name of

the firm, and

delivered to the plaintiffs, a gua

rantie, not addressed to any person, for pay. ment of coals to be supplied to U. & R. The

plaintiffs having

pointed out the

omission, a clerk of W., A., & Co. by the

direction of A.

wrote to

the

plaintiffs, stating that the

guarantie was intended for

them. The

clerk, also, without the knowledge of the other partners, wrote to the plaintiffs certain letters, amounting to evidence of an account stated in respect of the amount due on the guarantie:-Held, first, that the guarantie and subsequent letter constituted a sufficient notice in writing within the Statute of Frauds.

Secondly, that the guarantie did not bind the firm, there being no evidence that it was necessary for carrying into effect the partnership contract, or that the other partners had adopted it.

Thirdly, that, as the firm was not bound by the guarantie, the letters of the clerk respecting it were not evidence of an account stated as against the other partners.

1849.

BRETTEL

v.

WILLIAMS.

This document not being addressed to any one, the plaintiffs, on its being presented to them by Unit & Roberts wrote to Williams, Aykroyd, & Co., pointing out the omission, and requesting that it might be stated that the guarantie was meant for them. On the 25th of August one Hamlet, the clerk of the firm, by the direction of Aykroyd wrote to the plaintiffs as follows:

"The promise to see Messrs. Unit & Roberts' coal bills paid was intended for you. We are, gentlemen, your obedient servants,

"Per pro. WILLIAMS, AYKROYD, & Co., "E. HAMLET."

On the faith of the above guarantie coals were then supplied by the plaintiffs to Unit & Roberts. Other letters were written to the plaintiffs by Hamlet, on behalf of the firm, which, it was contended, contained evidence of an account stated respecting what was due on the coal account under the guarantie. It was not proved, however, that the defendants Williams & Price authorised the clerk to write those letters, or that they sanctioned or knew of the guarantie. It was objected, on behalf of the defendants, that the plaintiffs could not recover on the guarantie: first, because it was not addressed to them; and secondly, because it was given by Aykroyd only, who, it was contended, had no power to bind the other partners by entering into a guarantie in the name of the firm. The plaintiffs relied on the letters of the clerk as evidence of an account stated, the defendants contending that they were not admissible. The learned Judge received them subject to the objection, and directed a verdict for the plaintiffs on the first count, and for the defendants on the other count, reserving leave to move on both the above points.

Keating having obtained a rule nisi to enter a verdict

for the defendants on the first count, and Talfourd, Serjt., having also obtained a rule nisi to enter a verdict for the plaintiffs on the last count, both rules were argued at the Sittings after last Trinity Term (June 20).

Phipson, for the plaintiffs.-First, the guarantie, though not addressed to any one, is valid. All difficulty is removed by the letter from the clerk shewing to whom it was intended to be addressed. The two documents together constitute a sufficient guarantie within the Statute of Frauds. The letters were also evidence of an account stated. [Parke, B.-It is first necessary to discuss whether one partner can bind another by signing a guarantie in the partnership name.] Aykroyd had authority to bind his partners by signing this guarantie. All the defendants were parties to the contract by which Unit & Roberts undertook to supply them with bricks. Therefore, on the face of the transaction, they were insuring for themselves a regular supply of bricks by engaging for the solvency of Unit & Roberts with the persons who were to supply the latter with coals. The principle on which a guarantie signed by one partner binds the firm was fully discussed in Sandilands v. Marsh (a), which decided, that where one of two partners makes a contract as to the terms on which any business is to be transacted by the firm, although such business is not in their usual course of dealing, and even contrary to their arrangement with each other, and the business is afterwards transacted by or with the knowledge of the other partner, he is bound by the contract. [Alderson, B.-In that case the transaction appeared in the partnership books; therefore it is to be inferred that the other partner was aware of it. Here the guarantie is a matter collateral to the contract, and nothing in the books would give the other partners any intimation of its exist

(a) 2 B. & Ald. 673.

1849.

BRETTEL

v.

WILLIAMS.

1849.

BRETTEL

V.

WILLIAMS.

ence.] In Sandilands v. Marsh the transaction was not within the scope of the partnership business, and therefore it became necessary to shew that it was brought home to the knowledge of the other partner. [Alderson, B.-When he adopted the contract, he adopted all the terms of it; but in this case it is no part of the contract with Unit & Roberts that the defendants should guarantee the payment for coals supplied to them for the purpose of making the bricks.] The guarantie was in fact a mode of paying Unit & Roberts for the bricks. In Ex parte Gardom (a), it was expressly decided that the signature of one partner to a guarantie binds the firm. In Story on Partnership, sect. 107, it is laid down, that the rule as to one partner binding the firm "applies to all acts done by any partner touching the partnership business, and to any acknowledgments, representations, declarations, admissions, or undertakings of any partner relating thereto." Even the fraud of one partner will render the firm responsible: Blair v. Bromley (b). Here the undertaking is concerning the partnership business, and for the benefit of the firm.

Keating, for the defendants.-To hold this guarantie sufficient, would be to extend the authority of one partner to bind the firm further than any case has yet done. [Alderson, B.-Not further than Ex parte Gardom.] That case is not very satisfactory. The report does not state the circumstances under which the guarantie was signed, and they may have been such as, in that particular case, rendered the firm liable. Besides, the point was abandoned by the defendant's counsel, who successfully relied on another objection. It is now attempted to extend the rule thus far, that, if it can be shewn that the guarantie has any relation whatever to the partnership business, or is in any manner calculated to benefit the firm, they are bound by

it. In Hasleham v. Young (a), one of two attornies in partnership, in order to release a client from custody, gave an undertaking in the name of the firm to pay the debt and costs, and it was held that the firm was not liable. In this case it did not appear that the guarantie was of any advantage to the firm. They did not pay less for the bricks in consequence of its being given, nor was there any evidence that the coals in question were used in burning the bricks supplied to the firm. It might with equal reason be said, that one partner could bind the firm by guaranteeing the payment of the rent of land from which the clay was dug, or of the brick kilns, or the payment of the expenses of the carriage of the bricks. In Sandilands v. Marsh (b), there was evidence of a recognition and adoption by the one partner of the act of the other, so that he could not afterwards repudiate it. But no case except Ex parte Gardom has gone to the extent, that one partner has an implied authority to bind another, by signing a guarantie. [Parke, B.-You say that the benefit is too remote; that the guarantie was not necessary for carrying the partnership contract into effect, although it might have been convenient for that purpose.]

Phipson then contended, on the facts, that the clerk had authority to write the letters.

Cur. adv. vult.

The judgment of the Court was now delivered by

PARKE, B.-This case was tried before my Brother Platt, at the Spring Assizes at Worcester. It was an action on a guarantie alleged to have been given in the partnership name, by the defendants guaranteeing to the plaintiffs the payment for all such coals as they should supply to certain

1849.

BRETTEL

V.

WILLIAMS.